1. Introduction
In 1977, when the Additional Protocols to the Geneva Conventions first defined the recruitment and use of children in hostilities as violations of the laws of armed conflict,Footnote 1 the children in question were widely assumed to be boys. For example, the 1987 commentary on these new prohibitions explains that:
Recent conflicts have all too often shown the harrowing spectacle of boys, who have barely left childhood behind them, brandishing rifles and machine-guns and ready to shoot indiscriminately at anything that moves.Footnote 2
In the intervening years, a more nuanced picture has emerged about the diverse experiences of children associated with armed forces or groups (‘child soldiers’, to use the popular term) as a result of critical legal scholarship, evidence in war crimes prosecutions, and civil society advocacy. Displacing the dominant imagery of child soldiers as a mass of rifle-brandishing boys, the term is increasingly used by scholars and practitioners of international criminal law to describe any child who has been recruited (voluntarily or otherwise) into a state’s armed forces or an armed group, and whose roles in and around combat vary widely, as does their agency, their degree of physical and psychological development, and their moral culpability.Footnote 3
This more varied approach is reflected in the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, a guideline developed by UNICEF and civil society in 2007, which has since been endorsed by 112 states.Footnote 4 Aimed at preventing the militarization of children and supporting them post-demobilization, the guideline relates to any child ‘who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes’, regardless of whether they took a direct part in hostilities.Footnote 5 The Principles define a ‘child’ to mean under 18 in accordance with international human rights law,Footnote 6 however in international criminal law, a ‘child soldier’ generally means under 15 years of age.Footnote 7
In addition, cases before the Special Court for Sierra Leone (SCSL) and International Criminal Court (ICC) concerning the war crimes of conscripting, enlisting and using child soldiersFootnote 8 have shed light on the diverse experiences of girl soldiers. In particular, these cases have shown that girls in armed groups often serve multiple roles, including performing the same tasks as their male counterparts such as combat, carrying weapons, guarding ammunition), but also tasks reserved mostly for female recruits, such as being forced to have sex with, and to perform domestic labour for, their commanders.Footnote 9 This increased awareness of girls’ experiences in armed groups has helped to close impunity gaps and led to more gender-informed reparations. It also has potential implications beyond the courtroom, including incentivizing Disarmament, Demobilization, and Reintegration (DDR) programs to be more attentive to the needs of girls.Footnote 10 However, international criminal tribunals are yet to grapple with the full range of gender-based crimes to which female child soldiers are exposed. In particular, their experiences of reproductive violence have remained largely unaddressed. As a result, charges have not reflected the full range of wrongdoing against children in and associated with armed groups, judgments have only partially reflected the lived experience of victim-survivors, and reparations have not addressed the totality of harms.
Seeking to support a shift in practice, this article takes a deep dive into the historically under-examined issue of reproductive violence against female child soldiers, and identifies pathways for prosecuting such violence as crimes under international law. Taken as a whole, it demonstrates that proactively considering reproductive violence can deepen current understandings of the incentives for, and consequences of, the recruitment of female child soldiers. The article proceeds in four parts. First, it explains the concept of reproductive violence: a concept that has recently emerged as a prominent theme in international criminal law scholarship and practice. Next, it revisits publicly available court records from three jurisdictions that have led the way in addressing crimes against child soldiers: the ICC, SCSL and Colombian courts.Footnote 11 By trawling the evidence, submissions, and judgments in relevant cases, I identify glimpses of (mostly uncharged) reproductive violence against girls abducted by and integrated into armed groups.Footnote 12 Third, I turn to legal analysis, exploring how such reproductive violence might be charged as war crimes and crimes against humanity, if the glimpses solidified into solid evidence. Strategies for investigation, as well as prosecution, are discussed. Finally, I offer some brief conclusions and identify some areas for further research.
2. Reproductive violence
Over the past 30 years, gender-based crimes have been increasingly viewed as among the most serious crimes under international law. The arc of progress has been so well documented that only the briefest of summaries is needed here.Footnote 13 In short, we have gone from seeing major gaps around gender-based violence in the Nuremberg and Tokyo Tribunals, to a detailed examination of sexual violence against civilians (especially female civilians) in the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR),Footnote 14 and more recently, to the recognition of an extended range of sexual, reproductive, and gender-based crimes in the ICC’s legal framework, practice, and policies.Footnote 15 This extended range includes sexual crimes against men, women, boys and girls (both civilians and combatants), as well as non-sexual violations that the ICC Office of the Prosecutor has rightly characterized as gender-based persecution, such as the Taliban’s evisceration of women’s civil and political rights in Afghanistan.Footnote 16 Admittedly, progress toward accountability for gender-based violence has not been uninterrupted. There have been steps backward as well as forward in each of the above international courts, and in semi-international courts such as the SCSLFootnote 17 and Extraordinary Chambers in the Courts of Cambodia (ECCC).Footnote 18 But the general trend has been toward accountability: over time, gender-based crimes have been increasingly codified, investigated, and prosecuted in the field of international criminal law.
The current interest in reproductive violence builds on these developments. The concept of reproductive violence has been defined by scholars of international criminal law to mean violations of ‘reproductive autonomy’, being the right of individuals to exercise agency with respect to decisions about their fertility, or whether, when and with whom to reproduce.Footnote 19 As a symbolic level, delineating reproductive violence from other harms is a way to express that reproductive violence violates a distinct interest, being reproductive autonomy. At a practical level, delineating reproductive violence from other types of violence may prompt justice actors to consider the myriad ways that a person’s reproductive autonomy is violated in the context of war crimes, crimes against humanity, genocide, and aggression, in a world where such violations have often been overlooked in the past.
The term ‘reproductive autonomy’ entered the ICC’s lexicon in the early 2020s in the Ongwen case. Specifically, the Trial and Appeals Chamber agreed that ‘reproductive autonomy’ is the unique legal interest protected by the crime of forced pregnancy, in line with submissions by the Prosecution, victims’ legal representatives and amici curiae to that effect.Footnote 20 Building on that jurisprudence, the ICC Office of the Prosecutor made reproductive violence a distinct theme in its 2023 Policy on Gender-Based Crimes. Footnote 21 The previous 2014 gender policy governed the investigation and prosecution of ‘sexual and gender-based crimes’ generally, but made no reference to reproductive violence, reproductive autonomy, or similar.Footnote 22 But the 2023 version – spearheaded by Professor Kim Thuy Seelinger, serving as Prosecutor’s Adviser on Sexual Violence in Conflict – consistently refers to ‘sexual, reproductive and other gender-based violence’, thereby elevating reproductive violence to a new level of prominence. The 2023 policy notes that the Rome Statute expressly enumerates three forms of reproductive violence: ‘forced pregnancy’ as a war crime and crime against humanity; ‘enforced sterilization’ as a war crime and crime against humanity; and genocide by ‘imposing measures aimed at preventing births’ within a national, ethnic, racial, or religious group.Footnote 23 Other illustrative examples mentioned in the policy include ‘forced use of contraception, forced abortion, forced breastfeeding, denial of essential reproductive healthcare or physical violence aimed at reproductive organs’.Footnote 24 Unpacking the concept of ‘reproductive violence’, the policy explains:
Attacks on reproductive autonomy violate the right of individuals to exercise agency with respect to decisions about their fertility, or whether, when and with whom to reproduce. This form of violence can also affect the individual’s actual ability to have children. As with other forms of gender-based violence, reproductive violence violates fundamental rights to dignity and bodily integrity. Reproductive violence can be committed against persons of any gender, age, or condition, including LGBTQI+ persons, children, and persons with disabilities. It can also be committed against a group, as through systematic measures enacted to control or prevent collective reproduction.Footnote 25
Other recent ICC policies to specifically consider violations of reproductive autonomy are the Office of the Prosecutor’s 2023 Policy on Children Footnote 26 and the 2024 Policy on Slavery Crimes. Footnote 27
In recent years, reproductive violence has also been picked up as a valuable analytic category by other bodies in the field of international criminal law. For example in 2024, UN Women partnered with the NGO Global Justice Center to produce detailed guidelines for United Nations (UN) fact-finding mission and commissions on inquiry on documenting reproductive violence amounting to violations of international human rights law and to war crimes, crimes against humanity, and genocide.Footnote 28 The impact of those guidelines can be seen in recent reports by UN investigations in Israel and Occupied PalestineFootnote 29 and Sudan,Footnote 30 among others. Reproductive violence has also become more prominent in some domestic jurisdictions where international criminal law is enforced, particularly Colombia, as the final section of this article explains. And in the lead-up to negotiations for a Convention to Prevent and Punish Crimes against Humanity, several states have expressed support for enumerating a new crime against humanity of ‘reproductive violence’.Footnote 31 In this context of a heightened awareness of reproductive violence in the field of international criminal law, a ‘reproductive violence’ lens on child soldiers is especially timely.
3. Case studies
In writing this article, one of my main goals was to furnish readers with concrete examples of reproductive violence against girls in armed groups (henceforth, ‘girl soldiers’), so that subsequent discussions of investigation and prosecution strategies are grounded in lived experience. To that end, I reviewed publicly available court records from the SCSL, ICC and Colombian courts, all of which reveal examples of reproductive violence against girls soldiers. Unearthing those examples required some digging around, particularly in earlier SCSL and ICC cases, where references to reproductive violence were scattered and indirect. However, once one makes reproductive violence their conscious entry point into these cases, numerous examples – some clear-cut, some more veiled – start to come into view.
3.1. Special Court for Sierra Leone
Discussions of gender crimes and the SCSL tend to focus on forced marriage, an offence charged using available crimes against humanity such as ‘sexual slavery’ and ‘other inhumane acts’.Footnote 32 But on closer examination, the SCSL’s cases also reveal a litany of reproductive violations, including against young women and girls who can be described as child soldiers. Illustrative examples appear in the testimony of TF1-094, a prosecution witness in the AFRC case. TF1-094 was approximately 12 years old, and premenstrual, when abducted by the Sierra Leone Army (SLA).Footnote 33 While under the SLA’s control, she received weapons training,Footnote 34 was supplied with matches to burn down civilian vehicles and homes,Footnote 35 and was shot at by enemy forces.Footnote 36 In the Trial Judgment, her evidence is cited in respect of Count 9 (sexual slavery as an outrage on personal dignity),Footnote 37 but not Count 12 (conscripting, enlisting, or using children to participate actively in hostilities). Nonetheless, she can properly be described as a ‘child soldier’ in the sense described in this article’s introduction, given her experience of weapons training and combat.Footnote 38
As with many female abductees, TF1-094 was also forced to assume roles that her captors viewed as befitting women and girls. She was assigned as the ‘wife’ of a soldier named Andrew: meaning that he could sexually assault her and extract from her forced domestic labour.Footnote 39 She became pregnant within a month of this sexual violence,Footnote 40 and when Andrew learned this fact, he told her not to abort the pregnancy.Footnote 41 At six months pregnant – a stage when most pregnancies are easily observable – abdominal pain prevented her from keeping pace with the other recruits. For that transgression, she was beaten around the waist by an SLA commander.Footnote 42 She gave birth at full term (the publicly available court records do not reveal whether she delivered with medical care), but the child was stillborn.Footnote 43
Witness TF1-094’s testimony is suggestive of several forms of reproductive violence. Most obviously, the war crime of ‘forced pregnancy’. This war crime was not expressly listed in the SCSL Statute, but is defined in the Rome Statute to mean ‘the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law’.Footnote 44 Notably, there is no requirement in that definition that the victim carries the pregnancy to term. Thus, the crime can still occur if after some period of unlawful confinement, the victim terminates the pregnancy, or miscarries, or dies before giving birth. In the ICC’s Ongwen case (discussed below), the Appeal Chamber upheld the defendant’s conviction of forced pregnancy on the basis that he unlawfully confined two women whom had been ‘made forcibly pregnant’ through rape, and that his intent for such confinement was to carry out certain ‘grave violations of international law’, namely, to continue subjecting them to rape and other Rome Statute crimes.Footnote 45 It seems that Witness TF1-094 was likewise ‘forcibly made pregnant’ and then unlawfully confined with an intent to carry out ‘grave violations of international law’, including intending to continue to sexually assault her and to continue using her to participate actively in hostilities.
But ‘forced pregnancy’, as defined in the Rome Statute, is not the only form of reproductive violence identifiable in TF1-094’s testimony. It appears she was also subjected to ‘forced impregnation’, a term distinguishable from ‘forced pregnancy’ insofar as it implies being impregnated through force, threat, coercion etc, but without the elements of unlawful confinement and specific intent.Footnote 46 There can be no doubt that this act constitutes a severe violation of reproductive autonomy, and of human dignity and bodily integrity, even without the unlawful confinement and special intent required by the crime of ‘forced pregnancy’. But the circumstances by which TF1-094 became pregnant are not the only points to note. It is also relevant to consider her autonomy with respect to the duration of that pregnancy. In particular, her decision not to abort may have been the result of force or coercion. The Trial Chamber states that Andrew ‘told the witness not to abort the pregnancy and he would take care of her’, but this statement must be interpreted in light of the extreme power imbalance in their relationship (he, an armed male adult; she, an unarmed female child) and Andrew’s status as her abuser and captor. Forcing or pressuring a person not to abort a pregnancy (conceived consensually or otherwise) might be described as ‘forced continuation of pregnancy’ and, if that person consequently gives birth, ‘forced delivery’.Footnote 47
Here, we must acknowledge that a person who has been forcibly impregnated might nonetheless choose to proceed to full term, and/or might love and accept the resultant child. That can and does happen, and is the pregnant person’s prerogative. But this does not retroactively entitle others to violate her reproductive autonomy: the wrongdoing lies in removing their agency in such a physically, psychologically, and socially significant sphere of life. Forced impregnation and forced pregnancy can also have significant economic implications, particularly when perpetrators refuse to take responsibility for the resultant children, as the Prosecutor said happened for many women and girls forcibly impregnated by commanders in Sierra Leone.Footnote 48 In such circumstances, prevailing social and cultural conditions tend to mean that the economic impacts are borne by the mothers, who are ultimately left with responsibility for childcare when fathers are absent. The economic burden of providing for children is significant, and is especially difficult to bear for young mothers whose income-earning capacity is constrained by gendered barriers to employment and limited educational opportunities.
Potentially, TF1-094 also experienced a form of reproductive violence akin to what scholar Kelly Askin calls ‘forced loss of pregnancy’,Footnote 49 if her stillbirth was caused by the beatings, extreme stress, or other ill-treatment to which she was subjected by members of the SLA.Footnote 50 We can also note that she was placed under major physical and psychological strain while in SLA captivity, including during pregnancy, and that the restrictions placed on her liberty and movement precluded her from accessing reproductive healthcare. The imposition of these restrictions and conditions point to yet another form of reproductive autonomy, which we might call ‘denial of reproductive health’.
At the SCSL, reproductive violence against female child soldiers can also be seen in the Taylor case. Prosecution witness Akiatu Tholley is a case in point. As with TF1-094, this witness was young and premenstrual when abducted by an armed group (the Trial Chamber estimated her age as under 14 at that time).Footnote 51 Unlike in previous SCSL cases, in Taylor the Trial Chamber seemed open to reading particular witnesses as both child soldiers and survivors of sexual violence. For instance, the Chamber viewed Tholley as a victim of the war crime of conscripting and using children in hostilitiesFootnote 52 and of the crime against humanity of sexual slavery.Footnote 53 It accepted that a commander named James abducted and raped Tholley, made her carry weapons, taught her to use an AK-47 and a pistol, and forced her to consume marijuana and cocaine to overcome her fear of combat.Footnote 54 The drugs, she testified, meant that ‘at that time I never was crying, I was never feeling to go back home [sic] and so I was now brave enough to do wicked things’.Footnote 55 Tholley stated that she was forced to live in James’ household, where she continued to be raped by him and was beaten by him and his other ‘wives’.Footnote 56 In addition, James sent her on a food-finding mission, during which she was forced to shoot a civilian woman and abduct her children.Footnote 57 The sexual violence perpetrated by James resulted in three consecutive pregnancies (in Tholley’s words, he ‘impregnated me three times in the jungle when I was not matured for that’).Footnote 58 The first and second pregnancies were ‘wasted’ (when asked to clarify, she confirmed that this meant miscarriage).Footnote 59 The third was terminated in a UNICEF hospital after she escaped captivity: one hopes with her informed consent, although that is not expressly stated in the public redacted version of her testimony.Footnote 60
Here, once again, we have evidence of what can be called ‘forced impregnation’ (the initial conception), ‘forced pregnancy’ (unlawful confinement once forcibly impregnated), and possible ‘forced loss of pregnancy’ (if the two miscarriages can be attributed to ill-treatment within captivity). The fact that Tholley was able to access a medically safe abortion in respect of her third pregnancy does not negate the characterization of this as a ‘forced pregnancy’. That term does not require that the victim actually gives birth, or that the confinement lasts for the whole pregnancy; it will suffice that the victim was unlawfully confined with one of the required special intents for any portion of the pregnancy.Footnote 61
Empirical research suggests that the forms of reproductive violence against child soldiers glimpsed in the AFRC and Taylor cases were not isolated examples. For example, in her study of child soldiers in the RUF (another armed group involved in Sierra Leone’s civil war), Denov found that ‘[g]irls sometimes became pregnant as a result of rape’, and adds that ‘many of the babies died soon after birth due to malnutrition, lack of health care and disease and, in some cases, abuse’.Footnote 62 Similarly, in the AFRC case, the Prosecution argued ‘[m]any of the women victimized by this practice [of “forced marriage”] bore children fathered by these commanders’.Footnote 63 But despite the apparent prevalence of ‘forced impregnation’ and/or ‘forced pregnancy’ in SCSL cases, no specific charge was laid for these acts of reproductive violence, potentially because such acts are not expressly listed in the SCSL’s war crimes provisions.Footnote 64 However, several SCSL Chambers regarded the ‘forced pregnancy’ endured by female abductees as relevant to establishing the crime of sexual slavery or forced marriage as an ‘other inhumane act’.Footnote 65 In this way, the SCSL laid down some early jurisprudence on prosecuting reproductive violence, including against girls who can be described as ‘child soldiers’.
3.2. International Criminal Court
3.2.1. DRC cases
A close examination of ICC cases concerning the use of child soldiers in the Democratic Republic of the Congo (DRC) reveals further evidence of reproductive violence. The first case to be tried in the ICC, Lubanga, is a case in point. Thomas Lubanga Dyilo was the commander-in-chief of the UPC-FPLC, an armed group known for its use of child soldiers, among other crimes. He was charged with the war crimes of ‘[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’ in an international and/or non-international armed conflict pursuant to Articles 8(2)(b)(xxvi) and/or 8(2)(e)(vii) of the Rome Statute. Much ink has been spilled over the failure by the (then) ICC Prosecutor, Luis Moreno Ocampo, to include charges of sexual violence in this case, notwithstanding evidence that girls in the UPC-FPLC were routinely raped by their commanders, and that boys in the group were forced to commit acts of sexual violence (constituting sexual violence against those boys as well as against the persons assaulted).Footnote 66 Less has been written about reproductive violence in this case, although as I have previously noted, there are signs that girl soldiers in the UPC-FPLC endured this also.Footnote 67
For example, Prosecution Witness P-0007, a UPC-FPLC insider, testified: ‘[i]f the women got pregnant, they were either driven out of the camp or had an abortion.’Footnote 68 Judge Elizabeth Odio Benito, who had taken a keen interest in girl soldiers’ experience throughout the trial, asked the witness to elaborate:
Judge Odio Benito: This decision to have an abortion was made by the girls themselves or by somebody else?
P-0007: The decision to have an abortion was made by the commanders. The commander would say if a girl gets pregnant, she should no longer stay in the camp. Consequently, if a girl saw she got pregnant, she had an abortion not to be chased out of the camp.
Judge Odio Benito: Thank you. And finally, if the abortion take [sic] place, were there in the camp facilities where the girls could have their abortions?
P-0007: There wasn’t -- there weren’t any facilities at the camp where they could have abortions. They did things themselves. They took medicine, traditional medicine to have an abortion. They had abortions alone.
Judge Odio Benito: And finally, did you yourself witness this young Gegere girl dying, 14 years old, because she tried an abortion?
P-0007: Yes. Where I was, there was a girl from the Gegere ethnic group. She had tried to have an abortion and then got problems and died of these.Footnote 69
In Lubanga, further details of reproductive violence also emerged at trial through questioning by the legal representatives for victims (LRV). For instance, one LRV questioned Prosecution witness P-0046, a MONUC Child Protection Advisor who had interviewed numerous former UPC-FPLC child soldiers. The witness testified that ‘some of the girls [from the UPC-FPLC] became pregnant as a result of rape by commanders’,Footnote 70 and that upon becoming pregnant, some girls
were thrown out. That’s the expression they used … They said that they felt thrown out when they were no longer useful, useful for combat, and when they could no longer satisfy the sexual pleasures of those who were subjecting them to sexual abuse.Footnote 71
The witness further explained that life after the UPC-FPLC was particularly hard for those who had borne children as a result of sexual violence, stating:
[R]euniting these girls with their original communities, re-inserting them, was always something that was difficult. They were stigmatised. Often they had children whose fathers were not present. Frequently they had very low self-esteem, and there were families burdened with children. So re-inserting these girls was difficult. There was a lot of work that had to be done. A lot of mediation had to be provided so that not only the biological family but the community would accept them without stigmatising them in any particular way.Footnote 72
Witness P-0046 also testified that of the girls who became pregnant as a result of sexual violence within the UPC-FPLC, ‘some of them had abortions, voluntary or involuntary’.Footnote 73 She described the physical state of former girl soldiers as ‘quite deplorable’, explaining:
I have in mind the situation of one of these young girls who had had several abortions and who had to be referred to the emergency unit of the hospital in Bunia for care, and she spent a lot of time in hospital before she could recover. Now, with respect to the others, some of them returned pregnant. After spending several months or even several years in armed groups without receiving appropriate care, the type of care you give to a pregnant woman, they needed attention with respect to their feeding … One of them said that she sustained an abortion. It was involuntary. It stemmed from the difficult living conditions or difficult conditions under which they were living. Others said they had -- they had engaged in voluntary abortion.Footnote 74
In response to the emerging testimony of sexual and reproductive violence against UPC-FPLC child soldiers, several LRVs attempted to change the parameters of the Lubanga case. Four months into the trial, they asked the Trial Chamber to use Regulation 55 (which allows a trial chamber to modify the legal characterization of the facts), in order to introduce new charges to capture the various uncharged acts of violence that prosecution witnesses had described.Footnote 75 This request cited evidence from the trial record showing that child soldiers in Lubanga’s group were raped, whipped, beaten, and forced to consume drugs.Footnote 76 Relevantly, for present purposes, it also referred to ‘the events pertaining to the inhuman and/or cruel treatment of girls who had become pregnant as a result of being raped, including girls under the age of 15 years’, citing the precise portion of P-0007’s testimony in which he answered Judge Odio Benito’s questions on forced abortion.Footnote 77 The LRVs proposed that the war crimes of ‘cruel or inhumane treatment’, and the war crime and crime against humanity of ‘sexual slavery’, would be appropriate for these various forms of abuse.Footnote 78 However, the request to add new charges did not succeed for procedural reasons. Namely, Regulation 55 allows trial judges to change the legal characterization of facts already confirmed by the pre-trial chamber, but does not permit them to add charges based on facts alleged for the first time at trial. In short, the evidence of sexual and reproductive violence came too late.Footnote 79
At the end of the Lubanga trial, the Prosecution’s closing brief referenced the evidence of reproductive violence that had emerged through questions from the LRVs and the Bench. Describing the conditions at UPC-FPLC training camps, the brief noted:
Sexual abuse was “systematic” throughout the training camps. Pregnancy resulted, and abortion was an option only if the commanders decided so. Miscarriages were a consequence of the poor living conditions. W-0046 described their psychological and physical state as “quite catastrophic”.Footnote 80
Ultimately, however, there was no accountability for sexual or reproductive violence in this case. Consistent with findings by the Appeals Chamber, the Trial Chamber could not hold Lubanga accountable for the acts of rape, forced impregnation, forced pregnancy or forced abortion described at trial because the Prosecution had not included those factual allegations at the confirmation of charges stage. Therefore, the allegations of sexual and reproductive violence fell outside the factual scope of the case.Footnote 81 The Appeals Chamber also clarified that Lubanga was not liable for reparations in respect of harms associated with sexual and gender-based violence, including any reproductive violence against child soldiers in his armed group.Footnote 82 In that sense, the Lubanga case failed the UPC/FPLC child soldiers who had experienced sexual and reproductive violence within the group. It also disappointed a broader constituency of scholars and human rights defenders who had hoped the ICC’s jurisprudence on sexual and gender-based crimes would start strong, given the solid foundation laid by the jurisprudence of the ICTY and ICTR, as well as the inclusion of a wide range of sexual and gender-based crimes in the Rome Statute.
Nonetheless, the Lubanga case generated useful judicial guidance on the war crimes of conscripting or enlisting children under the age of 15, or using them participate actively in hostilities. In particular, the appeal judgment clarified that the phrase ‘using them to participate actively in hostilities’ is not limited to what IHL calls ‘direct participation in hostilities’. Hence, this war crime does not only prohibit deployment of child soldiers in battle; it prohibits using them for the transmission of military information, transportation of arms and munitions, and provision of supplies, inter alia.Footnote 83 A question left open is whether the sexual abuse of child soldiers by their commanders also constitutes ‘using them to participate actively in hostilities’. In a separate opinion attached to the Lubanga trial judgment, Judge Odio Benito answered that question in the affirmative.Footnote 84 But the majority trial judgment and the appeal judgment did not engage with this question of law, and it remains undecided today.Footnote 85
The subsequent Ntaganda case also included reference to reproductive violence against child soldiers. Like Lubanga, Bosco Ntaganda was a high-level commander in the UPC-FPLC. But unlike Lubanga, he was charged with gender-based crimes in a timely fashion, at the pre-trial stage. Among other things, Prosecutor Fatou Bensouda charged him with the war crimes of rape and sexual slavery pursuant to Article 8(2)(e)(vi) of the Rome Statute based on evidence that girl soldiers in the UPC-FPLC were subjected to sexual violence by their commanders and by other soldiers in the group. This made Ntaganda the first ICC defendant to be charged with ‘intra-group’ sexual violence, i.e. sexual violence whose alleged victims and perpetrators were part of the same fighting force.
Reproductive violence was not separately charged in Ntaganda. However, it was mentioned fleetingly in the Prosecutor’s Document Containing the Charges (DCC), which stated that in the period relevant to the charges, ‘UPC/FPLC commanders and soldiers raped and sexually enslaved their soldiers without regard to age, including child soldiers under the age of 15. Some child soldiers became pregnant as a result of their rape.’Footnote 86 There was no further reference to pregnancy, and none to forced abortion, in the DCC.Footnote 87 However, the brief mention of forced impregnation at least ensured that this form of reproductive violence against child soldiers was part of the factual scope of the case, enabling further evidence of forced impregnation to surface at trial.
Once the Ntaganda trial began, further details of reproductive violence emerged. Witness P-0083, a former UPC-FPLC child soldier, gave a first-hand account of her ordeals. The Trial Chamber accepted her evidence of undergoing training in a UPC-FPLC camp and being raped by multiple UPC-FPLC soldiers.Footnote 88 Her testimony further revealed that, before turning 15, she became pregnant as a result of rape. During that pregnancy, she continued to take part in battles and patrols.Footnote 89 After receiving medical treatment for a battle injury – during which the hospital staff informed the witness that she was pregnant – she returned to her village and learned that her parents had died.Footnote 90 Her trauma and her pregnancy prevented her from completing primary school. In her words, ‘How could I go back to school? My head wasn’t working well and I was pregnant.’Footnote 91 The Ntaganda judgment notes that the witness ‘gave birth to a child without knowing who the father was.’Footnote 92 As to how (or whether) this teenage mother with limited education and no parental support managed to provide for her child in a context where mothers in her position faced social stigmatization,Footnote 93 we can but wonder.
Other witnesses provided corroborating evidence of reproductive violence against UPC-FPLC child soldiers. Witness P-0046, the same MONUC Child Protection Officer who testified in Lubanga, repeated her observations about UPC-FPLC girl soldiers becoming pregnant through rape and having to abort.Footnote 94 P-0055, a high-level UPC-FPLC insider whose evidence the Trial Chamber found credible, referred to pregnancy among the group’s ‘personnel militaire féminin’ or ‘PMFs’ (female soldiers, including girls).Footnote 95 He stated: ‘[t]here were some pregnancies. In fact, there were some PMFs who had children, who had delivered these children when they were in those camps’.Footnote 96 This witness did not describe such pregnancies as ‘forced’, but the context of widespread rape logically means that many (if not all) of the pregnancies he observed in the camps were forced.
Taking these testimonies into account, the Trial Chamber rejected Ntaganda’s claim that nobody became pregnant at UPC-FPLC training camps.Footnote 97 It concluded that ‘female members of the UPC/FPLC were regularly raped and subjected to sexual violence’ by male UPC/FPLC soldiers and commanders, and that ‘a number of these female members of the UPC/FPLC became pregnant during their time in the UPC/FPLC’.Footnote 98 The Trial Chamber convicted Ntaganda in relation to the rape and sexual enslavement of girl children in the UPC/FPLC, and that conviction was upheld on appeal.Footnote 99 This was the first ICC case to confirm that ‘intra-group’ sexual violence can indeed amount to war crimes under the Rome Statute. Ntaganda was found liable for reparations for a wide range of harms arising out of the rape and sexual slavery for which he was convicted, including reparation for the discrimination and social rejection faced by children born as a result of such sexual violence.Footnote 100
By clarifying that certain forms of interpersonal violence within an armed group can constitute war crimes, the Ntaganda case set an important precedent. This finding is already having ripple effects beyond the ICC, particularly in Colombia – a point to which I return later. Yet if we look back on the case with a heightened sensitivity to reproductive violence, the absence of charges for forced pregnancy becomes conspicuous. It seems likely that this crime was established with respect to child soldiers who, after becoming pregnant through rape, were prevented from leaving because the UPC/FPLC leadership wanted to continue subjecting them to ‘grave violations of international law’, including continuing to use them to participate actively in hostilities before they turned 15, and/or subjecting them to further sexual violence. This observation about a potential gap in the Ntaganda charges demonstrates the value of an increased attention to reproductive violence going forward.
3.2.2. Uganda cases
The ICC’s two Uganda cases, Ongwen and Kony, illuminate additional aspects of reproductive violence against girl soldiers. Both cases concern crimes allegedly committed by members of the Lord’s Resistance Army (LRA), a rebel group that has been at war with Uganda’s armed forces since the late 1980s. The LRA is known for recruiting children for combat-related activities, but also for the purposes of forced maternity. In other words, one of its key reasons for forcibly recruiting girls and young women was to make them bear children who would be born into LRA captivity and incorporated into its ranks. Thus, reproductive violence was a means to sustaining and increasing the group’s numbers. As a 2022 report of the UN Secretary General explains:
During the conflict in northern Uganda, thousands of young girls were abducted by the Lord’s Resistance Army (LRA) and, to replenish the group’s forces, forced to bear children before their reproductive systems had matured, resulting in long-term physical and psychological harm; an estimated 8,000 children were born as a result.Footnote 101
Here, the UN report recognizes forced maternity as among the LRA’s key rationales for abducting children. In addition, it points to another form of reproductive violence experienced by girls associated with armed groups, namely being forced to bear children before being sufficiently physically and psychologically developed to do so.
In May 2005, Prosecutor Ocampo sought warrants of arrest for LRA leader Joseph Kony and four of the group’s other senior commanders, including Dominic Ongwen. The warrants were issued under seal just two months later, but the LRA cases then stalled and gathered dust until Ongwen’s unexpected surrender to the ICC in 2015. His appearance prompted Prosecutor Bensouda to revive the Uganda investigation, leading to the addition of further charges not included on Ongwen’s 2005 arrest warrant. These included forced pregnancy as a war crime and crime against humanity against two witnesses who had been assigned to Ongwen as ‘wives’, referred to as P-0101 and P-0214, at least one of whom also participated in military activities during early pregnancy.Footnote 102 When those charges were confirmed in 2016, Ongwen became the first person to be charged by an international court with forced pregnancy as a war crime or crime against humanity.Footnote 103
At trial, the Prosecution highlighted the centrality of reproductive violence to the LRA’s modus operandi, arguing that the group abducted, raped and enslaved women and girls ‘who would give birth to future LRA fighters’,Footnote 104 and that ‘the LRA was implementing a policy of abducting young girls for sex and procreation’.Footnote 105 In 2021, the Trial Chamber convicted Dominic Ongwen of forced pregnancy, inter alia.Footnote 106 In 2022, that conviction was upheld on appeal.Footnote 107 Ongwen was found liable for extensive harms arising from the crimes of which he was convicted, including ‘permanent damage to reproductive system; miscarriage; physical harm due to pregnancy and child bearing; health complications during childbirth’, the distress associated with caring for children born as a result of forced pregnancy to LRA soldiers, the pain of having to later ‘choose’ between such children and husbands who rejected them, and being scorned for having a child out of wedlock.Footnote 108
The Ongwen case does not reveal much about reproductive violence against children specifically (P-0101 was at least 21 at the time of the first charged forced pregnancy, P-0214 was at least 20).Footnote 109 However, it represents the start of the ICC’s practice in prosecuting reproductive violence as distinct criminal acts, which was a significant development in ICC practice. The case also identified a range of obstetric or reproductive injuries experienced by women and girls in the LRA – including ‘risky pregnancies’, sexual and reproductive health diseases, infertility, and excessive menstrual bleeding – indicating that these are injuries to explore in cases where girl soldiers are exposed to sexual and reproductive crimes.Footnote 110 In addition, the Ongwen case prompted the ICC Appeals Chamber to clarify the elements of forced pregnancy, thereby laying a strong foundation for the Office of the Prosecutor to charge this crime in respect of both adult and child victims – including children soldiers – at the next opportunity.
The Office has taken up that opportunity in the next Uganda case, concerning LRA leader Joseph Kony. Kony is still yet to appear before the ICC, but following the Ongwen appeal judgment, Prosecutor Karim Khan shook the dust off his case by seeking confirmation of the charges in absentia. The confirmation hearing in absentia – a first in the ICC’s history – occurred in September 2025, with all charges confirmed in November that year.Footnote 111 Extending the allegations of reproductive violence far beyond what was charged in Ongwen, the Kony DCC alleges that ‘hundreds’ of women and girls who had been abducted by the LRA, including girls aged under 15, were impregnated through rape.Footnote 112 The amended DCC adds charges of forced pregnancy inter alia against a witness who was around 12 when she became a forced ‘wife’ to Kony in 1993, after having been abducted by the LRA in 1991.Footnote 113 As the ICC’s jurisdiction only commenced on 1 July 2002, all charges in the case relate to acts allegedly committed after that date. Hence, the charges relating to this witness refer to a particular pregnancy in 2005, when she was in her late teens. However, the surrounding allegations are that Kony began to sexually assault her as early as 1993, and that she became pregnancy ‘several times’ as a result, indicating that her earliest forced pregnancies may potentially have been during her own childhood.Footnote 114
Of note, recently publicized court records show that there were signs of reproductive violence against girl soldiers in the Kony case since the beginning. The Prosecutor’s 2005 arrest warrant application cites evidence that Kony told one abducted girl ‘that her purpose, like that of the other abducted “wives”, was to give birth to expand the “clan”’.Footnote 115 Another abductee was forced to take medicine that would cause her to start menstruating.Footnote 116 In line with such evidence, the arrest warrant application alleges that once deemed sexually mature, girls abducted by the LRA were ‘routinely forced to accept male commanders as “husband,” and to accept duties as “wives,” including forced sex and forced impregnation’.Footnote 117 It further alleges that girls perceived as having reached sexual maturity ‘were expected to have sex with their “husbands” and to bear children’,Footnote 118 and that ‘the LRA abducted civilian girls and forced them to accept of all of the duties of being a “wife”, which included sex and procreation’.Footnote 119
Yet although this material was in the case file in 2005, neither the Prosecution nor the pre-trial judges proposed a charge of forced pregnancy at that time. It seems this crime, and the broader concept of reproductive violence, were not widely understood or prioritized in the ICC’s early years. By contrast, the 2024 Kony DCC characterizes the evidence relating to forced impregnation of female abductees (including children) as ‘forced pregnancy’.Footnote 120 That evidence also underpins the charges of enslavement,Footnote 121 ‘other inhumane acts’ (forced marriage),Footnote 122 sexual slavery,Footnote 123 and persecution on age and gender grounds.Footnote 124 It seems that the focus on reproductive violence in the Office of the Prosecutor’s recent policies is starting to translate into practice.
3.3. Colombia
At the domestic level, courts in Colombia are leading the way in addressing reproductive violence against child soldiers. In 2019, the Colombian Constitutional Court decided a case involving a young woman who had been recruited at age 14 by the Fuerzas Armadas Revolucionarias de Colombia (FARC). ‘Helena’ (her pseudonym) was forced to use mesigyna (a contraceptive injection), so that her utility as a combatant would not be compromised by pregnancy, childbirth, and motherhood. When she nonetheless became pregnant through consensual sex, her commanders made her have an abortion at seven months. The procedure occurred by force and against her wishes, causing lasting physical and psychological pain. Helena was young but arguably not a ‘child’ when the forced abortion occurred (she became pregnant at roughly 18 years old), but it seems she was forced to inject mesigyna as early as 14 years old.Footnote 125 Citing the ICC’s Ntaganda judgment on intra-group war crimes, the Constitutional Court found that Helena was entitled to reparation as a victim of the armed conflict because her ordeals of forced abortion and forced contraception were war crimes and violations of IHL, as was her recruitment as a minor and forced displacement.Footnote 126 Thus, it formally recognized the violations of her reproductive autonomy as war crimes.
Building on that case, Colombia’s Special Jurisdiction for Peace (Jurisdicción Especial para la Paz or JEP), has recognized a pattern of reproductive justice against child soldiers (including ‘Helena’, who was heard by the JEP in May 2025).Footnote 127 The JEP is the judicial arm of the Colombia’s multi-form transitional justice mechanism. Blending penal and restorative justice, it is seized with 11 ‘macro’ cases – referring to systematic criminality – arising from the armed conflict.Footnote 128 In several cases the JEP has accredited survivors to participate in war crimes proceedings on the basis of having experienced reproductive violence.Footnote 129 However for present purposes, the most relevant is Case 7, which focuses on the recruitment and use of girls and boys.Footnote 130
In October 2024, the JEP charged six former FARC leaders in Case 7 with the war crime of conscripting and using children under the age of 15, along with a suite of other war crimes committed against those children once recruited.Footnote 131 The Case 7 indictment cites the Ntaganda case to argue that intra-group violence can amount to war crimes,Footnote 132 but goes further than that ICC case by charging intra-group reproductive violence (including forced contraception, forced abortion, and deprivation of the opportunity for motherhood and fatherhood) as well as intra-group sexual violence.Footnote 133 It explains the militaristic utility of these acts of reproductive violence as measures to prevent motherhood or fatherhood, which would detract from the group’s membership, efficacy, and safety.Footnote 134 It also embeds these forms of reproductive violence in socially constructed gender roles, explaining that although the FARC formally espoused equality between women and men, in practice the burden of forced contraception fell on women, replicating a gender stereotypes by which childcare and pregnancy prevention are burdens shouldered disproportionately by women.Footnote 135 Deftly encapsulating these ideas, it explains that ‘el estándar de guerrero era un modelo masculino’ (the warrior standard was a male model): the capacity for pregnancy was viewed as antithetical to the group’s aims, as incompatible with the ideal soldier.Footnote 136 A final judgment on the factual and legal basis of these charges awaits. However, the indictment illustrates the attentiveness to child soldiers’ experiences of reproductive violence, and to the gendered nature of this violence, that this article supports.
4. Implications for legal practice
Having unearthed from SCSL, ICC and Colombian court some types of forms of reproductive violence that female child soldiers experience, this section considers the implications for future cases in the ICC and courts with a similar subject matter jurisdiction. It begins with considerations for investigations, and then proposes some charging strategies.
4.1. Investigations
In UN fact-finding teams, investigators have observed that having an explicit mandate to investigate reproductive violence provides a useful ‘hook’ for individual team-members to advocate for increased attention and resourcing on this issue.Footnote 137 They have also stressed that the knowledge that reproductive violence amounts to crimes under international law can increase the perceived weight of their findings in this regard.Footnote 138 Similarly, the focus on reproductive violence in the ICC’s Office of the Prosecutor’s updated Policy on Gender-Based Crimes, and that policy’s recognition that such violence can amount to crimes under the Rome Statute – gives investigators an explicit impetus to focus on this issue.
Beyond expressly mandating the investigation of reproductive violence – including against child soldiers – there are other practical steps that can support justice and accountability in this regard. Dedicated investigator training is critical. The better the investigators are trained to recognize ‘red flags’ of reproductive violence against child soldiers, the better their prospects of securing the evidence needed to establish the commission of the crimes and the defendant’s criminal responsibility. Evidence of commission could include testimony from survivors or eyewitnesses,Footnote 139 records from hospitals or reproductive health clinics, and contemporaneous complaint evidence (e.g. text messages attesting to the violence from the survivor, perpetrator or eyewitnesses), among other things. In jurisdictions applying similar modes of liability to the ICC, evidence to establish a defendant’s criminal responsibility might include testimony or records demonstrating their personal involvement in or knowledge of acts of reproductive violence,Footnote 140 or that they ordered or incited such acts,Footnote 141 or intentionally provided expertise or material support to enable such acts,Footnote 142 or were aware that their subordinates were committing such acts and yet failed to take all necessary and reasonable measures within their power to prevent, repress or punish the crimes.Footnote 143
Resourcing and training for other members of investigative teams is also necessary. To support survivors of reproductive violence, and to increase the likelihood of timely disclosures of it, psychological support for witnesses is needed. Ideally, field interpreters would be briefed in local slang and euphemisms relating to conception, pregnancy and birth, to reduce the likelihood of relevant information being missed. An example from the above SCSL cases is the Kriol term ‘wasted’ to mean ‘miscarried’. Here we see a parallel with sexual violence, which survivors and other lay witnesses often describe in indirect and culturally specific terms.Footnote 144
The Lubanga case illustrates this point about the value of early attention to reproductive violence within investigative teams. Had the investigators deployed to the DRC been more specifically instructed, resourced, and trained to pursue evidence of forced pregnancy and forced abortion against UPC-FPLC child soldiers from the start, the relevant facts might have been included in DCC, with the result that the conduct could be specifically charged at the pre-trial stage, or eligible for a Regulation 55 re-characterization at trial. In this counter-factual, the identification of evidence of reproductive violence could have been a catalyst for deliberations about appropriate charging strategies as early as the ICC’s first trial.
4.2. Charging strategies
The forms of reproductive violence against girl soldiers that are visible in SCSL, ICC, and Colombian cases include forcible impregnation and/or forced pregnancy, forced maternity, forced contraception and forced abortion, being forced to bear children before they are sufficiently developed, and the denial of reproductive health care. Many of these forms of reproductive violence could be charged as crimes within the jurisdiction of the ICC, or in international, national, and hybrid courts with a similar legal framework.
4.2.1. War crimes
When prosecuting reproductive violence against child soldiers as war crimes, the nature of these offences as intra-group crimes is important. As mentioned above, the ICC’s Ntaganda case is the leading precedent on intra-group crimes against child soldiers. Specifically, the case dealt with intra-group sexual crimes against child soldiers, but the reasoning has implications for intra-group reproductive crimes against child soldiers also.
Recall that Bosco Ntaganda was charged with the war crimes of rape and sexual slavery under Article 8(2)(e)(vi) of the Rome Statute, in relation to acts committed against UPC-FPLC child soldiers by other soldiers in that armed group. Back when Prosecutor Bensouda laid those charges in 2014, there were some lingering doubts as to whether acts of sexual violence could constitute war crimes if the victims and perpetrators belonged to the same fighting force.Footnote 145 No previous international court or tribunal had explicitly confirmed that in the past (although the SCSL had implicitly arrived at this position in relation to Akiatu Tholley, as the Pre-Trial Chamber in Ntaganda astutely observed).Footnote 146 Bringing this issue to the fore, the Defence in Ntaganda sought to have the charges of sexual violence against child soldiers struck out on the grounds that ‘crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law.’Footnote 147
However, the ICC Appeals Chamber confirmed that intra-group sexual violence could constitute the war crimes of rape and sexual slavery in both international and non-international armed conflicts, provided that the acts of sexual violence took place in the context of and were associated with the armed conflict (the so-called ‘nexus element’).Footnote 148 The Chamber explained that its logic did not extend to war crimes whose ambit is limited to victims of a certain status (henceforth, war crimes with ‘status requirements’). Examples cited by the Chamber included grave breaches of Geneva Conventions III and IV, as found in Article 8(2)(a) of the Rome Statute, which require that the victim is a prisoner of war or a person ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals’,Footnote 149 and serious violations of Common Article 3 of the Geneva Conventions, as found in Article 8(2)(c) of the Rome Statute, which require that the victim was not taking direct part in hostilities at the time of the offence.Footnote 150 But the Chamber found that no such ‘status requirements’ apply to certain war crimes under Article 8(2)(b) and 8(2)(e) of the Rome Statute, including rape and sexual slavery under Articles 8(2)(b)(xxii) and 8(2)(e)(vi).Footnote 151
In Ntaganda, the Appeals Chamber also considered the war crimes of ‘any other form of sexual violence also constituting a grave breach of the Geneva Conventions’ and ‘any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions’, as listed in Articles 8(2)(b)(xxii) and 8(2)(e)(vi) of the Rome Statute, although neither was charged in the case. It found that the reference to the Geneva Conventions in these provisions does not mean that any status requirements apply; it is simply a ‘gravity threshold’.Footnote 152 Thus, sufficiently grave ‘other forms of sexual violence’ committed against child soldiers by members of their own armed group may constitute war crimes under Articles 8(2)(b)(xxii) and 8(2)(e)(vi), provided the ‘nexus element’ for war crimes is satisfied.
With respect to intra-group reproductive violence against child soldiers, the Ntaganda jurisprudence seems to preclude charging certain war crimes due to their ‘status requirements’. Take, for example, the war crimes of ‘mutilation, cruel treatment and torture’ and ‘outrages on personal dignity’ under Article 8(2)(c)(i) and (ii) of the Rome Statute. Both are drawn from Common Article 3 of the Geneva Conventions, and hence apply only to victims ‘taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause’. That status requirement poses no obstacle for prosecuting forms of reproductive violence that necessarily place the victim hors de combat, such as forced abortion. But it may create challenges for forms of reproductive violence that can temporally overlap with active combat, such as forced contraception, forced pregnancy, and being forced to bear children before being sufficiently developed.
On the other hand, the Ntaganda reasoning permits the use of war crimes with no such ‘status requirements’ in respect of intra-group reproductive violence against child soldiers, including those in active combat. Such war crimes include forced pregnancy and enforced sterilization,Footnote 153 both of which relate directly to reproductive violence, as well as ‘sexual slavery’ and ‘other forms of sexual violence’, which could be interpreted as including reproductive violence too. Note, however, that the latter two crimes require that the perpetrator caused the victim to engage in an act of a ‘sexual nature’.Footnote 154 Diverse conceptions of what ‘sexual’ means can make this test difficult to apply.Footnote 155 However, courts may be more open to classifying acts of reproductive violence as ‘sexual’ if alerted to the Hague Principles on Sexual Violence, a survivor-informed guideline for classifying sexual violence which understands sexual acts to include ‘the use, interference, control, or degradation of fluids or tissue associated with sexual and reproductive capacity’.Footnote 156 Further support can be found in the approach of the Colombian Constitutional Court, which has ruled that the concept of ‘sexual violence’ in IHL includes forced abortion and forced contraception.Footnote 157
For ‘sexual slavery’, it is also essential to show that the perpetrator ‘exercised any or all of the powers attaching to the right of ownership over one or more persons’.Footnote 158 The ICTY Appeals Chamber offered some illustrative examples of indicia of exercising such powers, namely ‘control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour’.Footnote 159 Going back further in time, the US military tribunal in the Milch case identified incursions into marriage and family life as indicia of the exercise of powers of ownership over a person.Footnote 160 Controlling a person’s reproduction is likewise a sound indicator of enslavement, as recognized in the ICC Prosecutor’s 2024 Policy on Slavery Crimes.Footnote 161
Reproductive violence against child soldiers is particularly suited to being charged as a slavery crime. Notwithstanding the view that children exercise varying levels of agency within armed groups and that some join up of their own volition – albeit often in response to circumstances of poverty, armed conflict, state failure, and enabled by structural forces such as the proliferation of small armsFootnote 162 – many end up in circumstances tantamount to enslavement.Footnote 163 Their labour is controlled, such as when they are made to carry loads and weapons, or serve as guards, or take part in hostilities, or perform domestic labour; their movement is restricted, such as when they are detained in camps or forced to relocate with the group; their psyche is controlled, such as when they are forced to witness and participate in acts of violence, to parrot the group’s ideology through songs, chants, etc., and/or to consume drugs or alcohol. It is irrelevant that their commanders have no legal rights of ownership over them: both de facto and de jure slavery are prohibited.Footnote 164
4.2.2. Crimes against humanity
Charging reproductive violence against child soldiers as crimes against humanity may also be viable, provided that the contextual element for crimes against humanity is satisfied. The contextual element as expressed in the Rome Statute, which is used by most UN fact-finding missions too, is that the acts of violence were committed ‘as part of a widespread or systematic attack directed against any civilian population’, pursuant to a state or organizational policy.Footnote 165 The reference to a ‘civilian population’ requires some thought. Jurisprudence is yet to specifically clarify whether children who have been incorporated into armed groups are ‘civilians’ in the required sense during times that they participate actively in hostilities (a separate question is whether they fall into the category when prisoners-of-war or otherwise placed hors de combat).Footnote 166 But even if they are not themselves ‘civilians’, they may still be victims of crimes against humanity provided that the relevant acts were committed as ‘part of’ an attack against a population that is predominantly civilian.Footnote 167 Thus in the Kony case, the ICC Prosecutor has used a crimes against humanity framework to charge acts of sexual, reproductive, and other violence against children and adults who were abducted by and integrated into the LRA, including children who participated actively hostilities, on the understanding that these acts were committed as part of a wider attack against the civilian population of northern Uganda.Footnote 168
Where the contextual element is satisfied, there are multiple options for charging reproductive violence against child soldiers as crimes against humanity. In addition to the two forms of reproductive violence expressly enumerated in Article 7(1)(g) of the Rome Statute, being forced pregnancy and enforced sterilization, ‘enslavement’ under Article 7(1)(c) is also of utmost relevance. The inseparability of reproductive violence from slavery has been discussed above in the war crimes section. Unlike the crime against humanity of ‘sexual slavery’, for ‘enslavement’ there is no need to prove an act of a ‘sexual nature’.Footnote 169 Accordingly, ‘enslavement’ is the more efficient charge where both options exist (as they do in the Rome Statute’s article on crimes against humanity, but not its article on war crimes). A further reason to select ‘enslavement’ over ‘sexual slavery’ is that it positions sexual and reproductive violence as one among a multitude of dehumanizing practices that enslaved people endure, whereas using ‘sexual slavery’ arguably over-simplifies most victims’ experience by focusing on the sexual aspect.Footnote 170
The crime against humanity of ‘torture’ under Article 7(1)(f) may be apt where prosecutors are seeking to emphasize the grave impacts of reproductive violence on victims, including acute pain, serious obstetric injury, and/or major psychological distress. Unlike the war crime of torture, the crime against humanity of torture is not limited to pain inflicted for the purposes of obtaining information or a confession, punishment, intimidation, coercion, or discrimination.Footnote 171 It covers acts causing severe physical or mental pain or suffering not arising from lawful sanctions,Footnote 172 where the victim was in the perpetrator’s ‘custody or control’, meaning any form of detention or restraint.Footnote 173 Examples might include forced maternity, forced pregnancy loss, forced abortion, forced contraception, and being forced to bear children before one is sufficiently developed, depending on whether anaesthetic was available, the level of medical care, sanitation, and cultural safety protocols, and so on. Providing multiple sources of evidence, including expert evidence as well as victim impact statements, may assist in meeting this gravity threshold.
Also relevant is the crime against humanity of ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’ under Article 7(1)(k) of the Rome Statute.Footnote 174 This charge does not necessarily connote lesser suffering than torture.Footnote 175 But it can capture reproductive violence in circumstances where the victim was not in the perpetrator’s custody or control (for example, if it occurred through deception). If using ‘other inhumane acts’ in relation to reproductive violence, it is worth noting a 2016 decision of the ECCC, in which the judge ruled it would violate the principle of legality for the ECCC to prosecute the conduct of forcibly impregnating women as an ‘other inhumane act’ because at the time of the offending (between 1975 and 1979), there was ‘no clear human rights standard tied to conduct amounting to forced pregnancy, a violation of which could rise to the level of an ‘‘other inhumane act”’.Footnote 176 The better view, as argued by the ECCC’s international co-prosecutor, is that although neither forced pregnancy nor forced impregnation were expressly defined as crimes against humanity in the 1970s, such conduct clearly violated rights recognised under international law at that time, including the right to human dignity.Footnote 177 That an act violates an internationally recognized human right does not automatically make it prosecutable under Article 7(1)(k); the decisive question is whether the act is of a similar ‘nature and gravity’ to those listed in Article 7(1)(a)–(j). However, it tends to support the use of the charge.Footnote 178 This is pertinent to reproductive violence, which offends a litany of internationally recognized human rights, including the right to the highest attainable standard of health, of which ‘sexual and reproductive health is an integral part’.Footnote 179
‘Persecution’ is another relevant crime against humanity for charging reproductive violence against child soldiers. A discriminatory animus is required for this crime, meaning victims must have been targeted on certain grounds, including age and gender.Footnote 180 Usefully, this crime provides a way to prosecute human rights violations that are not themselves crimes under international law, when committed ‘in connection to’ an act that is a crime under the Statute, such as the war crime of conscripting, enlisting, or using child soldiers.Footnote 181
5. Conclusion
Girl soldiers, referring broadly to female children in and associated with armed groups, are not only at risk of being killed or injured by opposing forces. They are also exposed to gendered violence within their own ranks. Such gendered violence does not only encompass abusing them sexually and forcing them into domestic labour, as past ICC and SCSL cases recognized; it also includes extensive reproductive violence. In particular, girl soldiers are at risk of forcible impregnation and/or forced pregnancy, forced maternity, forced loss of pregnancy, forced contraception and forced abortion, being forced to bear children before their bodies and psyches are ready, and the denial of reproductive health care.
These forms of reproductive violence have tended to fly below the radar in the field of international criminal law. However, a shift is starting to occur. In the ICC, the proposed charges in the Kony case include forced pregnancy against ‘hundreds’ of women and girls abducted by the LRA, including girls who were used to participate actively in hostilities. And in Colombia, courts are breaking new ground in their recognition of reproductive violence as crimes under international law, including in respect of child soldiers. It seems that the heightened sensitivity to reproductive violence in the field of international criminal law – as practiced in international, national, and domestic forums – has had implications for investigating and prosecuting crimes against child soldiers.
Looking ahead, there is also scope for further scholarly enquiries child soldiers’ experiences of reproductive violence. For example, future studies may consider reproductive violence against male, trans, and/or non-binary child soldiers, or explore forms of reproductive violence beyond those discussed here, such as the destruction of cultural rites around pregnancy and birth.Footnote 182 When it comes to understanding, prosecuting, and designing reparation for reproductive violence against child soldiers, the field of international criminal law is evolving. Survivor-centred research, as well as progressive approaches to investigation and prosecution, can all contribute to this forward movement.
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